Hertog, ex rel. S.A.H. v. City of Seattle, 66136-7

CourtUnited States State Supreme Court of Washington
Citation979 P.2d 400,138 Wn.2d 265
PartiesJohn HERTOG, guardian ad litem and on behalf of S.A.H., a minor, Respondent, v. CITY OF SEATTLE and King County, Petitioners.
Docket NumberNo. 66136-7,66136-7
Decision Date24 June 1999

Harbaugh & Bloom, Gary N. Bloom, Debra Stephens, Daniel E. Huntington, Spokane, amicus curiae on behalf of Washington State Trial Lawyers Ass'n.

Allen, Hansen & Maybrown, Todd Maybrown, Christine Lamson, Seattle, amicus curiae on behalf of Northwest Women's Law Center.

Gordon, Thomas & Honeywell, John R. Connelly, Jr., Tacoma, amicus curiae on behalf of Family and Friends of Violent Crime.

Marcia M. Nelson, Asst. City Atty., Norm Maleng, King County Pros., Charles C. Parker, Deputy, Seattle, for Petitioner.

Janet L. Rice, Seattle, for Respondent.


In Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992), we held that a state parole officer has a duty to protect others from reasonably foreseeable danger resulting from the dangerous propensities of parolees. At issue in this case is whether a similar duty exists on the part of a city probation counselor and a county pretrial release counselor. We conclude that a duty exists in each situation, and that material issues of fact preclude summary judgment. Further, materials sought by plaintiff concerning treatment for sexual deviancy and substance abuse are discoverable under the facts here. The Court of Appeals is affirmed.


On October 6, 1990, Barry Lee Krantz raped six-year-old S.A.H. in her home. At the time, Krantz was on Seattle Municipal Court probation for a 1989 lewd conduct conviction. He was also on pretrial release while awaiting King County charges on a 1990 sexually motivated burglary. In this negligence action brought against both the City of Seattle (City) and King County (County), John Hertog, 1 as guardian ad litem for S.A.H., contends that the city probation counselor and the county pretrial release counselor negligently supervised Krantz, and this negligence proximately caused the rape. The individual counselors are not being sued.

Both the City and the County moved for summary judgment arguing they had no duty to protect others from foreseeable danger posed by Krantz. Their motions were denied. The Court of Appeals granted interlocutory discretionary review and affirmed the rulings denying summary judgment. That court also agreed with plaintiff's claim that the trial court incorrectly denied plaintiff's motion to compel the City to provide discovery of Krantz's treatment records for substance abuse and sexual deviancy. The following are facts relating to the asserted liability of the City and the County, respectively.

Plaintiff alleged in the complaint that the City and its employee, probation counselor Mr. Hoover, negligently supervised Krantz while he was on probation and this negligence led to the rape. 2

Krantz has a history of substance abuse and offenses involving sexual deviancy. Krantz was convicted of lewd conduct in 1980, 1987, and twice in 1989. Hoover was his probation counselor for the 1987 offense and one of the 1989 offenses. Krantz's offenses occurred while he was under the influence of drugs and alcohol. Following the 1987 conviction his 90-day sentence was suspended on condition that he attend and complete a drug-alcohol program. During an evaluation for the program, Krantz told the evaluator he had exposed himself to approximately 400 women. The evaluator described Krantz's deviancy as predatory, premeditated and compulsive, noting he showed little remorse or empathy with his victims. The evaluator described him as a "poly drug abuser" and said that Krantz's drug use was a "disinhibitor" which "impair[ed] judgment and weaken[ed] controls." Clerk's Papers (CP) at 445. Treatment and testing procedures were recommended. Krantz violated probation conditions many times, including failing to participate in treatment, substance abuse, and exposing himself on several occasions in May 1988. The treatment facility informed Hoover of the violations, and recommended court review. Following a court hearing, additional probation conditions were imposed, including drug treatment. Krantz again violated conditions of probation, and his probation was revoked and he was sentenced to 20 days in jail.

While on probation for the 1987 conviction, Krantz committed another lewd conduct offense for which the Bellevue District Court sentenced him in February 1989 to a year in jail, suspended on condition he attend and complete an in-patient sexual deviancy program, attend Alcoholics Anonymous (AA) meetings, and consume no drugs. Krantz failed to meet with his Bellevue probation counselor, and a bench warrant was issued. Also, he committed another lewd conduct offense, involving following a woman to her apartment building, and exposing himself and masturbating after she had shut the glass entrance door to the building behind her and turned to look at him. Krantz pleaded guilty to this lewd conduct in July 1989, and received a 180-day sentence, with 176 days suspended. Hoover was Krantz's probation counselor for this offense as well as the 1987 lewd conduct conviction.

When Krantz failed to appear for a meeting with Hoover, another bench warrant was issued. Krantz was arrested and the court required that he participate in sexual deviancy evaluation and treatment. He was arrested on the Bellevue bench warrant in November 1989 and jailed until January 1990. After his release from jail, he met with Hoover, who determined that Krantz required a high level of supervision. Krantz met with Hoover monthly as required, but failed for some time to make any progress in arranging for sexual deviancy treatment. Krantz did attend narcotics anonymous meetings sporadically. In May 1990, Krantz began sexual deviancy treatment with Timothy Smith, a sexual deviancy counselor. In June, Smith characterized Krantz as a "high risk offender" and recommended that he be "locked up for as long as possible" should he reoffend. CP at 41-42.

On June 20, 1990, Krantz admitted to Hoover that he had broken into the home of a nearby neighbor when she was not at home, masturbated, and had taken some of her underclothing. Hoover advised Krantz to turn himself in to the police, and relayed the information to the city attorney's office and the police. (These events led to the 1990 King County charges of sexually motivated burglary for which Krantz was on pretrial release at the time of the rape.)

Hoover recommended that Krantz's probation on the 1989 lewd conduct conviction be revoked. A hearing on the petition to revoke was held on July 30, 1990. At the hearing, Hoover informed the court that Krantz had used illegal drugs and that he had exposed himself several times while under supervision. Hoover also told the court about the burglary and that charges were being prepared. In addition, Hoover presented the court with Smith's July report, which explained Krantz submitted reports from Dr. Kenneth Von Cleve, a sexual deviancy psychologist, and Megan Kelley, who provides treatment for substance abuse, which stated that treatment could be provided to Krantz, although not if he was incarcerated. Von Cleve noted in his report that "[t]he most disturbing aspect of this case is the lack of monitoring that has been done." CP at 47. Based on the reports and recommendations for treatment, the court denied the petition to revoke probation and ordered Krantz to submit to alcohol treatment and sexual deviancy treatment with Von Cleve.

that Krantz was being terminated from the sexual deviancy program because of the burglary and his probation violations involving use of drugs and alcohol and engaging in deviant behavior.

Krantz signed a release allowing Dr. Von Cleve to disclose information to Seattle Municipal Probation Services: "I hereby consent to a mutual exchange of information between Kenneth Von Cleve, Sid Hoover, Seattle Municipal Probation. The purposes of the disclosures are to provide referral information and to inform Seattle Municipal Probation of diagnosis, attendance and nonattendance, treatment issues, progress, prognosis and completion." CP at 76.

During the period of July 30, 1990, the date of the revocation hearing, and October 6, 1990, when Krantz raped S.A.H., Hoover scheduled only one face-to-face meeting with Krantz, and during the meeting told Krantz he would not see him again for six months. This decision was made according to the City's risk assessment plan. Hoover believed that Krantz was still at as great a risk to reoffend as he was when first placed on probation, however. Although Hoover said in a declaration that he received a call from Von Cleve in early August and Von Cleve told him Krantz was in sexual deviancy treatment and chemical dependency treatment, CP at 38, he also said in a deposition that he did not recall whether Von Cleve told him that any urinalysis tests had been done, CP at 498. Hoover also said in his declaration that in mid-September, when he did not receive a written report, he called Von Cleve, who verified that Krantz was in compliance with his probation conditions. CP at 38. Krantz said, however, that he saw Dr. Von Cleve only once between July 30 and October 6, and considered another man to have been his treatment provider. He did not recall having undergone any urinalysis testing. Krantz was using drugs and alcohol at least two weeks before the rape, and had consumed alcohol and cocaine on the night of the rape.

When the City moved for summary judgment, plaintiff submitted the affidavit of William T. Stough, an experienced state probation officer, who stated that in his opinion Hoover should have scheduled more face-to-face meetings after probation revocation was denied, and should have verified Krantz's participation in treatment and compliance with probation conditions. Stough said that Hoover should have scheduled a meeting earlier than the September...

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